The third of the three "select" two-year-old sales, this one at Barrett's in California, is now in the books. (My comments on the previous 2017 select sales, Fasig-Tipton at Gulfstream and Ocala Breeders Sales, are here and here, respectively.) The only surprise is that there were no surprises; the Barrett's sale was a mirror image of the same auction last year.
If you look at Barrett's sales summary, it appears there were 128 horses catalogued for the sale, adding up the numbers of those sold, scratched, and who failed to meet their reserve (i.e., RNA). But the catalog itself had 135 horses listed. So let's stick with that number and adjust the other totals. (I really hate it when I have to go through the catalog page by page to do this; next time, maybe Barrett's could do some fact-checking.)
So my totals, which differ slightly from those published by Barrett's, are: 135 in the catalog, 45 (33.3%) sold, 19 (14%) RNA, and 71(53%) scratched. Using the traditional, if misleading, measure of a sale's success, only 19 (30%) of the 64 horses that actually went through the auction ring were RNAs. But what of all those other horses in the catalog? If they were scratched after traveling to the sale, that's a significant expense for their owners and consignors. Even if they were scratched earlier, at least some expense went into getting them far enough along to be in the catalog.
The median price for the horses that actually sold was $100,000, exactly the same as it has been at Barrett's March since 2015. The sale topper, by a considerable margin, was a Malibu Moon colt that was bought jointly by West Point Thoroughbreds and Spendthrift Farm for $675,000. Of the 45 horses sold, 12 of them went for more than $200,000. On the other hand, 15 sold for less than $50,000, including one of West Point's other purchases, a $35,000 colt by Creative Cause (West Point also paid $140,000 for a Jimmy Creed colt). Totally unsolicited advice for prospective West Point "investors": the $35,000 colt is the one you probably want a piece of. High-end purchases hardly ever pay back their buyers.
In addition to West Point, a couple of other public partnerships were active at the sale. My friends at Dare to Dream Stables paid $50,000 for a Smiling Tiger filly, and Eclipse Thoroughbred Partners paid $85,000 each for fillies by Animal Kingdom and Exchange Rate.The rest of us are still waiting for Ocala in April and Timonium in May.
And Art Sherman, who took a no-pedigree horse named California Chrome and did pretty well with him, went to all of $20,000 (yes, that's the right number of zeros) for a colt by Unusual Heat that's a full brother to two stakes winners and two other horses with six-figure lifetime earnings. I don't know what the physical issues were that let this horse get away so cheaply, but I'd be looking for him later this year at Art's home base, Los Alamitos.
So, what, if anything, to make of all this? The small number of horses sold, and the relatively modest median price at the Barrett's March sale make it a tough choice for consignors, mostly based in Ocala, to pay for the shipping and showing costs involved. Barrett's is already responding to consignors' worries about costs by suggesting that next year it will combine the March sale with its larger May sale (which tends to have more Cal-breds and a much lower median, around $30,000). That will ease the burden on consignors, but the auction house and the consignors will still need to figure out how to get the better horses seen by the richer buyers. After all, who would want to hang around Del Mar for a three-day sale? (Well, almost anyone, so I guess that's not such a big consideration after all.)
A more serious concern is that, for many years, Barrett's had a near-lock on Asian buyers, especially those from Japan. But those buyers, supplemented by new money from China, South Korea and Russia, now appear at all the sales. To the extent that Barrett's once had a competitive advantage in its superior access to Asian buyers, Fasig-Tipton and OBS have definitely closed the gap.
Next, we leave the "select" category and head for the big sales: OBS, April 25-28, with a catalog of 1,200 or so, and Fast-Tipton Timonium, May 22-23, with more than 500 likely in the catalog. Happy shopping!
Friday, March 31, 2017
Gambling Taxation Part 5 -- Record Keeping
As we saw in Parts 3 and 4 of this series, a gambler, whether a full-time professional or an occasional weekend player, may deduct the amount of losing bets from winnings to reduce taxable income (but not to create a loss that can be applied against non-gambling income). But how do you show how much you’ve lost? This post, the last in my series on taxation of gambling, addresses the question of how a horseplayer should document her wins and losses, and what the IRS and the Tax Court are likely to do if you have less than perfect documentation.
When I was living in Florida, I had a client – a jockey agent, naturally – who suddenly felt the need to file taxes (for the first time in his career, he had somehow landed a jockey who could actually win races). I asked the agent to bring his financial records, and he showed up with a very large trash bag filled with everything that conceivably might relate to his expenses for the past three years, expecting that I would sort through the trash and get him lots of deductions. Needless to say, there are better ways of keeping records, but many cases involving gamblers reflect a similar approach to record keeping. (By the way, and I’m sure this is no reflection on jockey agents in general, this guy stiffed me for half of my very reasonable fee.)
The most common problem that bettors have in sorting out how much they have won and lost is that a bettor hits one or a few big scores during the year and, as a result, gets some W2-G forms. Those report income, and the IRS computer programs will see that income whether the bettor reports it or not. But the track record of most bettors doesn't consist solely of a few big-ticket winners. Most of us win some, lose some and also, if we’re lucky, hit a few big scores that generate a few W2-G forms. I looked at my NYRABets account for last year, and, yes, I did get one W2-G on a Pick 4, but that accounted for less than 10% of my total winnings.
But if the IRS spots a win via the W2-G, what typically happens is that the bettor says, well I lost more than that. Then the IRS says, but you won more than that too, so it’s up to you to prove the amounts. And that's true. The law says that the burden of proof is on the taxpayer.
So what should a horse race bettor do to satisfy the IRS and the courts? The starting point is an IRS guideline that was issued 40 years ago and that even Andy Beyer would have trouble satisfying.
Under this guideline, a “diary or similar contemporaneous record,” supplemented by “verifiable documentation,” will “usually” be acceptable proof of wagering losses. The diary or betting log is supposed to show the date and type of every bet, the name and address of the place it was made, the amounts won or lost, and, ideally, the names of witnesses. The guideline goes on to say that losing tickets, ATM withdrawals, and other paper provided by the track or casino qualify as verifiable documentation.
Back in 1977, when the guideline was issued, there probably weren’t many bettors who kept a bet-by-bet record, no matter how many times the how-to books tell you to do it. Now, though, it’s surprisingly easy to produce this record. Just make every single bet through your ADW betting account, and then print out the monthly or annual statements at the end of the year. Even if you’re at the track, make the bets through your account, either on your phone or tablet or by using a card at the teller machines.
Because so many people are doing it this way, the number of cases involving racetrack betting has declined to virtually zero. These cases came up all the time in the 1960s and 1970s. Now, there are still just as many cases about gambling record keeping, but they’re almost all about slot machines, not racetracks.
But what if you don’t do all your betting on an ADW account, and you don’t have the contemporaneous records that the IRS guidelines call for? You might still be saved by something called the “Cohan rule,” named for famed Broadway actor and producer George M. Cohan, who showed up at the IRS back in the 1920s with the equivalent of my jockey agent's black trash bag and said, “look, you know I had expenses, so you have to allow me some sort of deduction.”
The courts agreed, and the Cohan rule has now become part of tax law. Under it, a taxpayer can rely on reasonable estimates of expenses, as long as there is some factual basis for the estimate. So the next question is, what’s “some factual basis”?
Going back to those cases from the 1960s and 1970s, we know that a pattern of borrowing money from friends every time you go to the track isn’t enough. Nor is bringing in a shoebox full of losing tickets, at least when they’ve been purchased from many different windows and some still have heel prints on them. If the losing tickets all come from the same or adjacent windows, though, and if they appear to have been saved more or less contemporaneously (one winning taxpayer wrapped up each day’s losing tickets in a rubber band), then the IRS or the Tax Court may find that convincing enough to allow at least some deduction.
But most of these Cohan rule cases end up allowing the bettor a deduction that’s not as big as the amount of their winnings, because judges still look with disfavor on gamblers, so there’s still some net betting income on which tax is due. If, like most bettors, you lose money over the course of a year, the best course is to use your ADW account and -- presto! – you have the contemporaneous records required by the IRS guidelines.
Not to mention that keeping contemporaneous records, so you can see how you’re doing, is one of the essential steps to becoming a member of that nearly extinct species, winning horse race bettors. If you don’t know what bets you’re losing, you can’t figure out why you’re losing and what steps to take to stem the leakage.
So, to summarize, if you want to be able to offset (reportable and other) wins with losses, at least up to the point of zeroing out the wins, keep good records in an orderly way. An ADW account that provides monthly statements showing each bet is ideal, but sometimes that shoebox full of losing tickets will still be useful.
Thursday, March 23, 2017
Gambling Taxation - Part 4. How to Be a Professional Gambler
Two posts back, I discussed the Internal Revenue Code section that limits any deduction for gambling losses to the amount of gambling winnings. In other words, if a bettor has a bad year and ends up with a net loss, that loss cannot be applied against other income, such as a salary or a consulting fee, to reduce total taxable income. But, even with that limitation, it’s better if the IRS says you’re in the “trade or business” of gambling, as opposed to gambling as a hobby or recreation. Here’s why.
Someone who’s in a trade or business can deduct all the “ordinary and necessary” expenses of that business. For a horse-race bettor, that would include the cost of past performances (yes, you, Daily Racing Form, with your $9 tabloids!), handicapping software and advice, travel to the track, as long as it’s not a daily commute, track admission and parking, internet service provider costs for those who bet online, some of the cost of meals while at the track, and even, in a couple of cases, ATM fees at the track. No, you can’t deduct net gambling losses, but these other expenses are still valuable as deductions.
Even more important – and here I have to get a little wonkish – being in a trade or business lets you take your deductions on a Schedule C, for sole-proprietorships, instead of on a Schedule A, for personal deductions. Here’s why that’s important.
First, when gambling income is listed on the Form 1040, and then gambling expenses and losses (the latter only up to the amount of winnings) are taken as personal deductions, that has the effect of increasing a taxpayer’s gross income. That, in turn, means that the Internal Revenue Code’s limits on personal deductions are also increased. Some deductions disappear entirely for taxpayers with high gross incomes, and some, like those for “miscellaneous business expenses” (those Racing Forms again) and medical expenses, must exceed a certain fraction of the taxpayer’s gross income to qualify. So, the higher the gross income, the higher the threshold before those expenses can be deducted.
Second, even apart from the increase in gross income, having to report expenses as personal, on a Schedule A, has its own drawbacks. Under current law, those miscellaneous deductions are allowable only to the extent that they are more than 2% of gross income. So, for a taxpayer with $100,000 in gross income, that means the first $2,000 of expenses are non-deductible.
In contrast, if someone is in the trade or business of gambling, then all this income and all these deductions go into the Schedule C business form. Instead of having to take the wagering losses and the expenses as personal deductions, they get subtracted from the wagering income right on the Schedule C, and only the bottom line of the Schedule moves over as income or loss onto the Form 1040. No limitation on deductions, no artificial increase in gross income.
So, how do you get to be a professional, in the “trade or business” of gambling? The answer is in Internal Revenue Code Section 183 and the Regulations and court cases that have interpreted it.
Section 183 distinguishes between activities engaged in for profit, on the one hand, and all other activities. If an activity is not engaged in for profit, then the only allowable deductions are (1) deductions that would be allowable without regard to trade or business status (e.g., certain state and local taxes or interest); and (2) business-related deductions incurred in the activity, including a professional gambler's wagering losses and incidental expenses, but only to the extent of any taxable income that remains after subtracting the first category of generally allowable deductions. So, if you’re not a professional gambler, you can never have a net loss from gambling that reduces your tax bill from non-gambling activity.
Section 183 also establishes a presumption that an activity is engaged in for profit if gross income from the activity exceeds the deductions attributable to it in at least three of the most recent five taxable years. It’s only a presumption, though. The IRS can still argue that your gambling is just a hobby, even if you show that three-out-of-five-year profit.
The Treasury Regulations spell out the factors that matter in deciding if you’re in a trade or business. You don’t need a perfect six out of six, but most people who win their cases have at least a majority of the factors on their side.
First, the manner in which the taxpayer carries on the activity, in particular whether he or she carries it on in a businesslike way and maintains complete and accurate books and records. On this criterion, the casual gambler, going to the track or the casino every few weeks and not maintaining regular ledgers, would appear to fall in the hobby/recreation category, while those (relatively few) gamblers who maintain detailed and complete records would be seen as reasonably seeking a profit.
Second, the expertise of the taxpayer (or of the taxpayer's advisers). On this criterion, the gambler who has read all of Andy Beyer or who has served a faithful apprenticeship to an acknowledged expert in the field – think Andy Serling sitting in Steve Crist’s box at Belmont all those years -- is more likely to be seen as engaging in the activity for profit. Buying a tip sheet on your way into the track might not qualify. Interestingly, the Tax Court has treated a taxpayer’s development of a “system” for beating slot machines as evidence of expertise. I guess the Tax Court judges themselves are a bit lacking in such expertise.
Third, the amount of time and effort the taxpayer spends on the activity. Unless, according to the regulations, if the time and activity has substantial personal or recreational aspects. In other words, the more fun one is having, the less likely the IRS is to view the activity as engaged in for profit. The more you hate going to the track, the more likely you are to be a professional.
Fourth, the presumption that an activity is carried on for profit if it actually shows a profit in three of five years. Aha! You think, I can show a $100 profit in each of three years and a $10,000 loss in each of the other two. Nope. The relative size of the profits and losses is also relevant. A presumption is just that, a presumption.
Fifth, the financial status of the taxpayer. Do you really look to gambling to pay the rent and buy groceries? The wealthy industrialist or actor, for example, who gambles heavily, might not be seen to be engaging in gambling for profit, but the working-class retiree, whose only other source of income is a Social Security check, might have a stronger case.
Sixth and last, whether the activity contains elements of personal pleasure or recreation. This raises some generally troubling issues; most people, presumably, would prefer to work in occupations that gave them some personal satisfaction. To say that achieving such a goal puts the tax deductibility of legitimate expenses in jeopardy seems perverse.
No one of these factors is decisive. In each case the IRS and the courts weigh them all and reach a decision.
There has been a flurry of court cases in the past decade involving gamblers who seek to be classified as being in the trade or business. There have been several cases where the IRS agreed that the taxpayer was a professional gambler, others in which the Tax Court rejected the gambler’s claims, and a few where the Tax Court overruled the initial IRS determination and found the taxpayer actually was in a trade or business, most recently, in February of this year, in the case of a poker player who succeeded in deducting travel expenses for his trips to Las Vegas and Atlantic City casinos by showing the court that he played tournaments most weeks in the year.
But the general trend of the cases is against us. Relatively few gamblers approach their task with the single-mindedness of purpose necessary to escape the limitations described above. Those that do win in court typically spend at least 40 hours a week gambling. Thus, most losing gamblers would still not be able to deduct losses and expenses in excess of their winnings.
Next, the importance of keeping good records.
Friday, March 17, 2017
Gambling Taxation - Part 3 - But Isn't That Unconstitutional?
In my previous post, I discussed the limitation imposed by Internal Revenue Code Section 165(d), which prohibits gamblers from using losses that exceed their winnings to offset other income. Today’s post asks whether that limitation is a violation of the US Constitution’s equal protection guarantee. I’m not the first to raise that issue, and the courts have, so far, sided with the IRS and against the taxpayers who have raised it. But, in the interest perhaps of saving some folks unnecessary legal fees, here’s my analysis of the issues.
Federal tax law treats gamblers differently from other categories of taxpayers. On rare occasions, gamblers have used the fact of this different treatment to claim that their Constitutional rights have been violated. In the 1994 Tax Court case, Valenti v. Commissioner, and in the 2014 case of Lakhani v. Commissioner, the taxpayers, both “professional” horse race bettors, asserted that such differential treatment amounts to a denial of equal protection or due process. The starting point for their – ultimately unsuccessful – argument is the 14th Amendment to the US Constitution, which provides that:
. . . . Nor shall any State . . . deprive any person within its jurisdiction of the equal protection of the laws.
While the Equal Protection Clause, in its own terms, does not apply directly to the federal government, the Supreme Court has held that the Due Process Clause of the Fifth Amendment imposes a similar equal protection obligation on the federal government. Thus it is at least theoretically possible that a federal tax statute may be so discriminatory as to violate the equal protection-due process requirement. To take an example that is no longer as far-fetched as we might have thought, a tax that applied only to Muslims would not only violate the 1st Amendment’s guarantee of religious freedom but would also be a denial of equal protection.
In the case of Code Section 165(d), which disallows any deduction of net gambling losses, the taxpayers’ argument was that the law singles out gamblers and treats them unequally compared, say, to commodities futures traders or the issuers of credit default swaps, both of which are essentially bets.
Well-established equal protection doctrine, however, made it unlikely that a challenge to tax statutes singling out gambling would succeed. Unless a higher level of judicial scrutiny is mandated because the government action creates a suspect classification (like race, for example) or impinges on a fundamental right or interest (like free speech or religion), in which case a “strict scrutiny” standard is applied, all that is required to sustain a statute or administrative action against an equal protection attack is for the court to find a rational basis, that is, any possible logical relationship between the governmental action and any permissible governmental objective. As the Supreme Court said in a 1953 case:
The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. When social or economic legislation is at issue, the Equal Protection Clause allows the states wide latitude, and the Constitution presumes that even improvident decisions will be rectified by the democratic processes.
More specifically, in a 1992 case, the Supreme Court upheld a California initiative provision that reassessed residential property only upon sale, with the result that more recent buyers paid substantially higher taxes than long-term residents. The Court said:
In general, the Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered true by the governmental decision maker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational. This standard is especially deferential in the context of the classifications made by complex tax laws.
Even under this very deferential rational-basis standard, a few tax laws and administrative procedures have been held so irrational as to violate the Equal Protection Clause. For example, in 1985 the Supreme Court invalidated three state tax laws: (1) an Alabama statute imposing higher taxes on out-of-state insurance companies than on those based in the state; (2) a Vermont statute imposing automobile use taxes only on those cars registered in Vermont by persons who had been nonresidents at the time of the automobile purchase, but not on those bought by Vermonters; and (3) a New Mexico property tax exemption that applied only to certain veterans who moved into the state before a particular cut-off date.
The relatively few Supreme Court federal tax cases that have addressed equal protection issues have uniformly upheld the Code and its application by the Internal Revenue Service. For example, lower federal courts have denied equal-protection challenges to the differential rate structures for married and single taxpayers. The Supreme Court had always refused to hear appeals from these decisions until its landmark decision of LGBT rights in its 2013 decision in U.S. v. Windsor. In that case, the Court held that a validly married same-sex couple was entitled to the same benefits under the estate tax laws as a heterosexual couple. But that case involved gender – a suspect classification – and the right to marry – a fundamental right. The right to bet on horse races probably doesn’t rise to the same level of Constitutional protection.
Horse race bettors, as noted above, have raised the equal protection argument, twice, in 1994 and in 2014, each time with the same result, upholding Section 165(d)’s denial of net losses. In the 1994 case, Valenti, the Tax Court concluded, without much analysis, that Congress could have had a “rational basis” for treating gambling differently from other businesses. The 2014 Lakhani case added a specific rationale that might have been what Congress had in mind back in 1934 (if, indeed, Congress can ever be said to have anything in mind), namely, that the limitation on losses was really a device to ensure that gamblers reported their winnings.
So, if you think discriminating against gamblers in the tax laws is unconstitutional, my advice is: get over it. The courts have been there and done that, and there’s essentially zero likelihood that the established rule will change. Yes, it is true that horse race bettors and other gamblers are treated unequally with, say, commodities traders or other “investors” in zero-sum financial market bets. But, short of having someone in Congress like Joe Bruno, New York’s former State Senator (R-Horse Racing) to push our interests, there’s not much we can do about it.
So, what can we do, given that the loss-deduction rule isn’t going to change any time soon? For a start, those of us who are serious bettors can do whatever it takes to ensure that we’re in the “trade or business” of gambling, so at least we can deduct expenses, like our purchases of the obscenely overpriced Daily Racing Form. That’s the subject of the next couple of blog posts on taxation, which will appear after a brief intermission for the OBS two-year-old sale this week.
Thursday, March 16, 2017
The OBS March 2YO Sale: Good at the Top, Not So Much Lower Down
The Ocala Breeders Sales Co.’s (OBS) March sale of two-year-olds in training, the second big sale of the year, is in the books. You can see the complete results here, and the conventional rose-colored-glasses interpretation by the industry press here, here and here.
The way I see the results, there are three notable results: (1) for the sale as a whole, it was pretty much business as usual, with overall results similar to the last couple of years; (2) breaking the sale down, there was a good market at the top, but lots of weakness lower down; and (3) we saw a pinhooking home run for first-time sellers Zayat Stables. Here are some details.
Overall, 414 of the 677 horses originally catalogued for the OBS March sale went through the ring, with 300 (72.5%) of them selling, either in the ring or post-sale, before they left the sales grounds. That’s on a par with last year, when 73.7% of horses that went through the auction ring found new owners.
Although the gross and the average for the sale were both ahead of last year, the median price, a better indicator of the overall health of the auction and one that isn’t swayed by a few high-priced stars, actually declined by an insignificant 2.5%, from $102,500 last year to an even $100,000. So, taking all these indicators together, this year’s March sale was pretty much business as usual.
But, to move to my second point, the overall clearance rate – the percentage of horses cataloged that eventually were sold, was a mere 44.3%, similar to what it was at the Fasig-Tipton Gulfstream sale earlier this month, but less than OBS had seen in recent years. At OBS, there were 677 horses original listed in the catalog. Of those, 263 were scratched, many of them between the breeze show last week and the actual sale on Tuesday and Wednesday. So, lots of horses that breeders and pinhookers hoped to sell are still at home, waiting for buyers. Looking at the results sheets for the sale, it appears that most of those through the ring but not sold (RNAs) fetched final bids somewhere between $40,000 and $100,000. This range is what has come to be called the “middle market.” My guess is that many of the horses that were scratched had originally been expected to bring similar prices, since the cheaper horses, the ones with less pedigree or poorer physicals, tend to be entered in OBS’s later sales, in April and June. So the March OBS results show substantial weakness in that middle market, and we haven’t even reached the lower market strata (where people like me search for that overlooked diamond in the rough). Even though there’s been substantial adjustment since the 2008 financial crisis, with a huge drop in the number of foals born annually, it still looks like there are still too many horses for the available demand. Further adjustment is on the way, because that’s the way capitalism works.
Returning to the top of the market, the big surprise was the first-year success of Zayat Stables’ pinhooking venture. Previously, Ahmed Zayat and his team had focused, with excellent results, on buying horses to race. Now, having won the Triple Crown with American Pharoah and established Pioneer of the Nile as a major stallion, they’re branching out. The Zayats entered a number of horses at both the F-T Gulfstream and the OBS March sales. Not all sold: two were RNAs and one broke down in the F-T breeze show and had to be euthanized, but overall, the success rate was astonishing. Here’s a list of the Zayat horses that were pinhooked at the two sales and went to new owners:
F-T Hip 132 (f. Pioneer of the Nile–She Herarah) bought for $180,000 at Keeneland September, sold (post-sale) for $350,000.
OBS Hip 493 (c. Curlin-Devious Intent) bought for $425,000 at Keeneland September, sold (post-sale) for $350,000.
OBS Hip 178 (c. Tapizar-Shining Victory) bought (post-sale) at F-T October for $50,000, sold for $50,000.
F-T Gulfstream Hip 118 (c. Bodemeister-Pink Diamond) bought for $190,000 at Keeneland September, sold for $750,000.
F-T Gulfstream Hip 21 (c. Tale of the Cat-Awesome Bull) bought for $160,000 at F-T Saratoga, sold for $250,000.
OBS Hip 360 (f. Congrats-Azalea Belle) bought for $250,000 at Keeneland September, sold for $1,700,000 (the OBS sale topper).
OBS Hip 489 (c. Mission Impazible-Deputy Reality) bought for $185,000 at F-T July, sold for $280,000.
So, for the seven Zayat pinhooks that did sell, that’s aggregate sales proceeds of $3,730,000, compared to an aggregate purchase price of $1,450,000, or a return on investment of 157%. Even after factoring in the agents’ and auction-house commissions, the training costs and the prices of the horses that weren’t sold, that’s still something like doubling their money in less than a year. Lots of credit all around – to the Zayats, father and son, to the EQB team led by Jeff Seder and Patti Miller, who picked out the horses (disclosure: I worked with Jeff and Patti at Keeneland), to the McKathan Brothers, who trained the horses up to the sales and consigned a couple of them, and to consignors Eddie Woods and Ciaran Dunne.
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